Vt. Memo to the Bar, Aug. 3, 2021

SUPREME COURT OF VERMONT

OFFICE OF THE COURT ADMINISTRATOR

PATRICIA GABEL, ESQ. Mailing Address

State Court Administrator Office of the Court Administrator

patricia.gabel@vermont.gov 109 State Street

Montpelier, VT 05609-0701

Telephone (802) 828-3278

FAX: 802 828-3457

www.vermontjudiciary.org

TO: Members of the Vermont Bar

FROM: Patricia Gabel, Esq., State Court Administrator

RE: Promulgated and Proposed Rule Amendments, Efiling Appellate Training, Important

Notice to All Attorneys Licensed in Vermont, Odyssey File and Serve and Public

Portal Information, Filing of Exhibits & Other Miscellaneous Info

DATE: August 3, 2021

To ensure you continue to receive these emails, please add JUD.AttyLicensing@vermont.gov

and JUD.CAOMemotoBar@vermont.gov to your Safe Senders list.

For your information, please find:

• Order Promulgating Amendments to Administrative Order No. 50

• Proposed Order Adding Rule 11(a)(4) to the Vermont Rules of Criminal Procedure

• Proposed Order Amending Rule 16.3(b)(3) of the Vermont Rules of Civil Procedure

• Proposed Order Amending V.R.C.P. 3.1, 4, 56, and 84, Abrogating the Appendix of Forms to those Rules

• Efiling Appellate Training

• Important Notice to All Attorneys Licensed in Vermont

• Odyssey File and Serve and Public Portal Information

• Filing of Exhibits

• Updated Court Forms

• Obligations Under A.O. 41

• eCabinet Registration

I. PROMULGATED RULE AMENDMENTS

Order Promulgating Amendments to Administrative Order No. 50

This Order was promulgated on August 3, 2021, effective immediately.

Administrative Order No. 50, originally promulgated in August 2020, created a pilot project to

serve defendants more efficiently in cases where the Office of Child Support (OCS) is providing

services under federal law. The pilot project began in Windham and Windsor Units and this

amendment expands the pilot to Caledonia and Orange Units.

II. PROPOSED RULE AMENDMENTS

(NOTE: THE FOLLOWING AMENDMENTS HAVE BEEN PROPOSED AND

HAVE NOT BEEN APPROVED BY THE SUPREME COURT.)

a. Proposed Order Adding Rule 11(a)(4) to the Vermont Rules of Criminal Procedure

Proposed Rule 11(a)(4) provides an additional procedure whereby a defendant may preserve a

post-conviction challenge to a predicate conviction while pleading guilty or no contest to an

enhanced offense, where the State has not consented to preservation of the challenge under the

terms of Rule 11(a)(3). The proposed amendment provides that, with the approval of the court, a

defendant may preserve a PCR challenge to a predicate conviction when entering a plea of guilty

or nolo contendere even in cases where there is no plea agreement, or consent to the preservation

otherwise given by the State, by stating on the record at the change-of-plea hearing an intent to

challenge one or more of the convictions through a PCR petition, specifically identifying the

convictions to be challenged, and stating the basis for the challenges.

Comments on this proposed amendment should be sent by October 4, 2021, to Hon. Thomas A.

Zonay, Chair of the Advisory Committee on Rules of Criminal Procedure, at the following

address:

Honorable Thomas A. Zonay, Chair

Advisory Committee on Rules of Criminal Procedure

Thomas.Zonay@vermont.gov

b. Proposed Order Amending Rule 16.3(b)(3) of the Vermont Rules of Civil Procedure

The amendment to Rule 16.3(b)(3) is proposed pursuant to the Supreme Court’s directive under

Administrative Order 49, ¶ 13, that the Civil Rules Advisory Committee “consider whether a

permanent change to the rules relating to participation in remote mediation is advisable.” The

amendment retains the basic structure of Rule 16.3(b) that in-person attendance is the default

position, with an option for remote mediation if the parties so stipulate or the court orders it (or

excuses a party) for good cause.

Comments on this proposed amendment should be sent by September 3, 2021, to Allan Keyes,

Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

c. Proposed Order Amending V.R.C.P. 3.1, 4, 56, and 84, Abrogating the Appendix of Forms

to those Rules

The proposed amendment to Rule 3.1(b)(2) substitutes “the applicant’s” for “household” to

achieve internal consistency of usage throughout Rule 3.1 and to provide clear and consistent

guidance to the Court Administrator in the development of forms to implement the rule. The party

seeking waiver of fees and payment of costs is denoted “the applicant” elsewhere in the rule. See

Rule 3.1(a), (b), (b)(1), (4), (c). The retention of “household” to describe income to be counted in

paragraph (b)(2) when the rule was generally amended in 2020 was inconsistent with the general

purpose of the 2020 amendments and created a confusing ambiguity in the application of the rule.

See Reporter’s Notes to 2020 amendments.

The proposed amendments to Rules 4(b) and 4(l)(3)(D) and (H) are for consistency with the

proposed amendment of V.R.C.P. 84 and the proposed abrogation of the Appendix of Forms

consistent with the Supreme Court’s transfer to the Court Administrator of the authority to amend

and adopt forms and publish them on the Judiciary website.

The proposed amendments to Rule 56 clarify the requirements for motions for summary

judgment, oppositions to summary judgment motions, and motions in reply to opposition. The

purpose is to separate out statements of often immaterial or nonresponsive additional facts and to

discourage the not-uncommon practice of obfuscating the terms of a reply by adding a host of

such additional facts. No substantive change is intended.

Rule 84 is proposed to be amended concurrently with the abrogation of the Appendix of Forms.

Rule 84 and the Appendix of Forms were originally adopted with the Vermont Rules of Civil

Procedure in 1971 on the model of the 1938 Federal Rules of Civil Procedure. For at least five

years, the Vermont Court Administrator’s office has been publishing new and amended forms on

the Judiciary website in a “Forms Library,” which now contains a great number and wide variety

of detailed forms addressing matters beyond the scope of those in the former Appendix and

published in a format appropriate for electronic filing. See

https://www.vermontjudiciary.org/forms-library. The proposed amendment of Rule 84 establishes

the Judiciary website as the primary source of forms.

The Appendix of Forms is abrogated to implement the simultaneous amendment of V.R.C.P. 84

establishing the Judiciary website as the location for publication and revision of Civil forms.

Comments on these proposed amendments should be sent by October 4, 2021, to Allan Keyes,

Esq., Chair of the Advisory Committee on the Rules of Civil Procedure, at the following address:

Allan Keyes, Esq., Chair

Advisory Committee on the Rules of Civil Procedure

ark@rsclaw.com

III. EFILING APPELLATE TRAINING

There will be a remote education session on the changes to the appellate rules and on efiling at the

Supreme Court on Tuesday, August 31, 2021, over the lunch hour. More information on how to

join will be provided closer to the date.

IV. IMPORTANT NOTICE TO ALL ATTORNEYS LICENSED IN VERMONT

Attorney licensing is implementing a new online Attorney Portal that went live on May 17, 2021.

Vermont attorneys will be able to conduct their licensing business, such as requesting certificates

of good standing and submitting a certification of completion of a MCLE makeup plan, through

this Portal. All attorneys must review the Attorney Portal User Guide (especially pages 1 through

7) prior to registering and logging in to the Attorney Portal for the first time, as that Guide

contains important instructions for the first-time use of the Portal.

Attorneys renewing this year must renew their license through the Attorney Portal. If you

are due to renew your license this year but have not, you should have received several reminder

emails. You should register with the Attorney Portal, verify your bar number, and submit your

attorney licensing statement as soon as possible. If you do not do so by August 17, your license

will be subject to administrative suspension.

V. ODYSSEY FILE & SERVE AND PUBLIC PORTAL INFORMATION

As of April 1, 2021, there is a new efiling use fee structure for users of Odyssey File & Serve

(OFS). The new per case fee is $14 per filer or firm, payable upon a party’s first filing after April

1, 2021. This replaces the previous $5.25 fee per envelope model. The Judiciary encourages all

practitioners and others interested to learn more at www.vermontjudiciary.org/efiling

Currently, all trial courts, the Environmental Division, and the Judicial Bureau are using Odyssey

and accepting electronic filings through Odyssey File & Serve. Please use the following links to

access Odyssey electronic filing and portal systems and for more information.

Odyssey File & Serve. Odyssey File & Serve (OFS) is the platform through which you will

electronically file with the courts. To access OFS, please visit

https://vermont.tylerhost.net/ofsweb You can access user guides through the “User Guides” link

in the “Self Help” window. You can also access docket-specific user guides and a new Frequently

Asked Questions on the judiciary’s website at https://www.vermontjudiciary.org/about-vermontjudiciary/electronic-access/electronic-filing For technical support regarding Odyssey File &

Serve, please contact Tyler Technologies at 800-297-5377 or efiling.support@tylertech.com

If you have procedural questions about OFS, please email the judiciary at

JUD.EFileSupport@vermont.gov

Odyssey Public Portal. The Odyssey Public Portal allows you to view your case files. To access

the portal, please visit https://publicportal.courts.vt.gov/Portal/ Before you can view your case

files, you must first register in the portal and then request elevated access. The Public Portal User

Guide contains instructions on how to register and request elevated access. You can read the user

guide on our website at https://www.vermontjudiciary.org/about-vermont-judiciary/public-portal

For technical support regarding the Public Portal, please contact the Vermont Judiciary’s

HelpDesk at Jud.helpdesk@vermont.gov When emailing, please write “Public Portal” in the

subject line.

Efiling Training Opportunities

Watch a pre-recorded efiling training webinar from the Vermont Judiciary. The judiciary’s

NG-CMS project team recorded a demonstration of how to use Odyssey File & Serve that you

can view here: https://www.youtube.com/watch?v=ke2ouMDK4VQ&feature=emb_title

Practice setting up your firm and submitting filings. For hands on practice, you can create

your firm, register users, and begin filing practice cases in the Vermont “Stage” environment. Be

sure that the web address includes the word “stage” (https://vermont-stage.tylerhost.net/ofsweb).

The Stage environment is available any time. Please note that submissions will only be reviewed

periodically, so you may not get a timely response on whether your practice submissions have

been accepted. The Stage environment is available now only for familiarity and direct hands-on

experience and is not a substitute for registering on the actual efiling site when you are ready.

VI. FILING OF EXHIBITS

Per the 2020 Vermont Rules for Electronic Filing, all electronically filed documents (including

exhibit lists and exhibits) must be submitted in PDF format. It is recommended that the exhibit list

be filed in Odyssey File & Serve (OFS) as a “Lead Document” and that any PDF exhibits be filed

as attachments to that exhibit list.

Multimedia files that cannot be converted to PDF format should be submitted by nonelectronic

means on a CD, DVD, or USB flash drive (aka thumb drive) and can be mailed or delivered to the

court. It is recommended that filers indicate this on the exhibit list being filed in OFS. Please note

that while the courts are equipped to view common multimedia formats (such as .mp3, .mp4,

.mpeg, .mov, .wmv files), the filer will have to provide compatible player software if an exhibit is

in a proprietary multimedia format.

Finally, please remember that regardless of how an exhibit is filed, it is the filer’s responsibility

during a hearing to present the exhibits. During remote hearings, this means the filer must either

assure that all witnesses have been provided with the marked exhibits in advance and have them

available to view; or be able to share his or her screen to allow all participants to view the exhibit.

If the exhibit is a video or audio file, the litigant must be prepared to play it during the hearing.

VII. MISCELLANEOUS

a. Court Forms

Court forms are constantly being updated. Please refer to the judiciary website for the most up-to-date forms, https://www.vermontjudiciary.org/court-forms

Please use the link below to report any form question, concern or issue

http://www.vermontjudiciary.org/website-feedback-form or you can access our Website Feedback

program at the bottom of each web page.

b. Obligation under A.O. 41

Attorneys are reminded that an “attorney must report to the State Court Administrator within

thirty days any change of the office mailing or electronic mail address” and that “[n]otice sent to a

reported address is sufficient even if not received by the attorney because of failure to report the

proper address or failure of delivery not caused by the court.” A.O. 41, § 4(c). To update changes

in your contact information, please access your attorney account with the Attorney Portal

To ensure you continue to receive these emails, please add JUD.AttyLicensing@vermont.gov

and JUD.CAOMemotoBar@vermont.gov to your Safe Senders list.

c. eCabinet Registration

Administrative Order No. 44 requires attorneys in active status to register up to three email

addresses in eCabinet for purposes of receiving notices of hearing and other documents. You may

include staff email addresses in the three email addresses that you specify.

If you have already registered in eCabinet, the email address(es) you provided as part of that

process will be used.

If you have not already registered in eCabinet, please go to

https://efiling.eservices.crt.state.vt.us/ click Register Now, and follow the simple prompts. This

website works best with Explorer. Attorneys will need their attorney license numbers to register.

Helpful information about the Attorney Email Registration process is also available on the

Electronic Filing page of the judiciary website at https://www.vermontjudiciary.org/about-vermont-judiciary/electronic-access/electronic-filing Please contact jud.helpdesk@vermont.gov

or call the Helpdesk at 802-828-4357 with any questions in the meantime.

You are also reminded that you are required to update the email address(es) and other contact

information you have registered as soon as there are any changes, including changes to staff email

addresses you may have included with your registration. To revise the information, please go to

https://efiling.eservices.crt.state.vt.us/ log into eCabinet, click “Account,” choose “My

Profile,” and make the necessary changes to your contact information.

Updating information in the Attorney Portal or in eCabinet does not automatically notify the

other. It is your responsibility to update both. If you are a member of the Vermont Bar

Association, you will also need to separately notify the VBA.